American Federation of Government Employees, Local 2578, AFL-CIO (Union) and General Services Administration, National Archives and Records Service, Washington, DC (Activity)  

 3 FLRA No. 92
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL=CIO, LOCAL 2578
 (Union)
 
 and
 
 GENERAL SERVICES ADMINISTRATION,
 NATIONAL ARCHIVES AND RECORDS
 SERVICE, WASHINGTON, D.C.
 (Activity)
 
                                            Case No. 0-NG-164
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    DURING CONTRACT NEGOTIATIONS BETWEEN THE PARTIES TO RENEW THEIR
 EXPIRING BASIC AGREEMENT, THE UNION SUBMITTED THE FOLLOWING PROPOSAL
 WHICH PERTAINS TO THE DEVELOPMENT OF THE AGENCY'S PLAN FOR IMPLEMENTING
 THE FEDERAL EQUAL OPPORTUNITY RECRUITMENT PROGRAM (FEORP) AS PROVIDED IN
 5 U.S.C. SECTION 7201 /1/ :
 
                              UNION PROPOSAL
 
    THOSE SECTIONS OF THIS CONTRACT THAT AFFECT PROMOTION, SELECTION, AND
 RETENTION
 
    OPPORTUNITIES FOR WOMEN AND MINORITIES (E.G., PROMOTION, TRAINING,
 EVALUATION, CAREER
 
    DEVELOPMENT, AND DISCIPLINE) CONSTITUTE THE AGENCY'S PROGRAM UNDER 5
 U.S.C. 7201(C) FOR THE
 
    ELIMINATION OF UNDERREPRESENTATION OF WOMEN OR MINORITIES AT ANY
 GRADE AND OCCUPATIONAL GROUP
 
    AS QUICKLY AS POSSIBLE.
 
    THE AGENCY ALLEGED THAT THE PROPOSAL CONFLICTS WITH THE STATUTE AND
 IS INCONSISTENT WITH REGULATIONS IMPLEMENTING THE FEORP.  THE UNION
 ARGUED PRINCIPALLY THAT THE PROPOSAL IS WITHIN THE MANDATORY SCOPE OF
 BARGAINING AS IT CONCERNS A CONDITION OF EMPLOYMENT.
 
    THE FEDERAL EQUAL OPPORTUNITY RECRUITMENT PROGRAM IS DESIGNED TO
 INSURE EQUAL EMPLOYMENT OPPORTUNITY BY ELIMINATING "UNDERREPRESENTATION"
 OF MINORITY GROUPS WITHIN THE FEDERAL CIVIL SERVICE THROUGH A CONTINUING
 PROGRAM OF MINORITY RECRUITMENT.  /2/ EXECUTIVE AGENCIES WHICH FALL
 WITHIN THE COVERAGE OF THE FEORP ARE REQUIRED TO MAINTAIN EQUAL
 OPPORTUNITY RECRUITMENT PLANS COVERING POSITIONS AT VARIOUS
 ORGANIZATIONAL LEVELS AND GEOGRAPHIC LOCATIONS WITHIN THE AGENCY.  WHILE
 SUCH PLANS ARE MONITORED BY OR RECEIVE ASSISTANCE FROM THE EQUAL
 EMPLOYMENT OPPORTUNITY COMMISSION AND THE OFFICE OF PERSONNEL
 MANAGEMENT, AGENCIES HAVE WIDE DESCRETION IN ESTABLISHING AND
 ADMINISTERING THEM.
 
    AS SET FORTH ABOVE, THE UNION'S PROPOSAL IN THE INSTANT CASE IN
 EFFECT SEEKS TO NEGOTIATE, AS APPLICABLE TO BARGAINING UNIT EMPLOYEES,
 THE CONTENTS OF THE ACTIVITY'S PLAN TO ELIMINATE UNDERREPRESENTATION OF
 WOMEN AND MINORITIES.  THAT IS, THE PROPOSAL IN THE INSTANT CASE
 PROVIDES, IN ESSENCE, THAT CERTAIN OTHER SECTIONS OF THE PARTIES'
 AGREEMENT WILL CONSTITUTE THE AGENCY'S FEORP PLAN.  THESE OTHER CONTRACT
 PROVISIONS ARE NOT PRESENTLY BEFORE THE AUTHORITY NOR IS THERE ANY
 INDICATION AS TO THEIR SPECIFIC CONTENT.  IN FACT, THE RECORD DOES NOT
 DISCLOSE WHETHER THESE CONTRACT PROVISIONS REFERRED TO BY THE DISPUTED
 PROPOSAL HAVE BEEN FINALIZED OR WHETHER THEY ARE STILL BEING NEGOTIATED
 BY THE PARTIES.  IN ANY EVENT, GIVEN THE FACT THAT THE PROPOSAL
 INCORPORATES BY REFERENCE OTHER PROVISIONS WHICH MAY IN AND OF
 THEMSELVES RAISE QUESTIONS REGARDING THEIR CONSISTENCY WITH LAWS,
 REGULATIONS OR THE STATUTE, THE AUTHORITY FINDS THE INSTANT PROPOSAL IS
 NOT SPECIFICALLY DELINEATED TO FORM THE BASIS OF A NEGOTIABILITY
 DETERMINATION.  IN THIS REGARD, IT IS WELL ESTABLISHED THAT A PETITION
 FOR REVIEW OF A NEGOTIABILITY ISSUE WHICH DOES NOT PRESENT A PROPOSAL
 SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND CONTENT AS TO PERMIT THE
 AUTHORITY TO RENDER A NEGOTIABILITY DECISION THEREON DOES NOT MEET THE
 CONDITIONS FOR REVIEW SET FORTH IN SECTION 7117 OF THE STATUTE AND
 SECTION 2424.1 OF THE AUTHORITY'S REGULATIONS.  ASSOCIATION OF CIVILIAN
 TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA NATIONAL GUARD, CASE NO.
 O-NG-27, 2 FLRA NO. 39 (DEC. 28, 1979) REPORT NO. 25.
 
    IN THE INSTANT CASE, THE PROPOSAL IS NOT SUFFICIENTLY SPECIFIC AND
 DELIMITED IN FORM AND CONTENT AT THIS TIME TO PERMIT THE AUTHORITY TO
 RENDER A NEGOTIABILITY DETERMINATION.  ACCORDINGLY, AND APART FROM OTHER
 CONSIDERATIONS, THE APPEAL IS HEREBY DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 7201 PROVIDES IN PERTINENT PART:
 
    SECTION 7201.  ANTIDISCRIMINATION POLICY;  MINORITY RECRUITMENT
 PROGRAM
 
   .          .          .          .
 
 
    (B) IT IS THE POLICY OF THE UNITED STATES TO INSURE EQUAL EMPLOYMENT
 OPPORTUNITIES FOR EMPLOYEES WITHOUT DISCRIMINATION BECAUSE OF RACE,
 COLOR, RELIGION, SEX, OR NATIONAL ORIGIN.  THE PRESIDENT SHALL USE HIS
 EXISTING AUTHORITY TO CARRY OUT THIS POLICY.
 
    (C) NOT LATER THAN 180 DAYS AFTER THE DATE OF THE ENACTMENT OF THE
 CIVIL SERVICE REFORM ACT OF 1978, THE OFFICE OF PERSONNEL MANAGEMENT
 SHALL, BY REGULATION, IMPLEMENT A MINORITY RECRUITMENT PROGRAM WHICH
 SHALL PROVIDE, TO THE MAXIMUM EXTENT PRACTICABLE --
 
    (1) THAT EACH EXECUTIVE AGENCY CONDUCT A CONTINUING PROGRAM FOR THE
 RECRUITMENT OF MEMBERS
 
    OF MINORITIES FOR POSITIONS IN THE AGENCY TO CARRY OUT THE
 ANTI-DISCRIMINATION POLICY SET
 
    FORTH IN SUBSECTION (B) IN A MANNER DESIGNED TO ELIMINATE
 UNDERREPRESENTATION OF MINORITIES IN
 
    THE VARIOUS CATEGORIES OF CIVIL SERVICE EMPLOYMENT WITHIN THE FEDERAL
 SERVICE, WITH SPECIAL
 
    EFFORTS DIRECTED AT RECRUITING IN MINORITY COMMUNITIES, IN
 EDUCATIONAL INSTITUTIONS, AND FROM
 
    OTHER SOURCES FROM WHICH MINORITIES CAN BE RECRUITED;  . . . .
 
    /2/ "UNDERREPRESENTATION" IS DEFINED IN OPM' IMPLEMENTING
 REGULATIONS, 5 C.F.R. 720.202(A)(1979), AS:
 
    (A) SITUATION IN WHICH THE NUMBER OF WOMEN OR MEMBERS OF A MINORITY
 GROUP WITHIN A CATEGORY
 
    OF CIVIL SERVICE EMPLOYMENT CONSTITUTES A LOWER PERCENTAGE OF THE
 TOTAL NUMBER OF EMPLOYEES
 
    WITHIN THE EMPLOYMENT CATEGORY THAN THE PERCENTAGE WOMEN OR THE
 MINORITY CONSTITUTES WITHIN
 
    THE CIVILIAN LABOR FORCE OF THE UNITED STATES . . . .